Defamation, Misrepresentation, and Business Torts

Question 1

What is the rule in a case of defamation?

Answer 1

A plaintiff may bring an action for defamation if the defendant:

1. Made a defamatory statement
2. That is of or concerning the plaintiff
3. The statement is published to a third party who understands its defamatory nature; and
4. The statement damages the plaintiff’s reputation
5. (Most states) The statement must be false

Question 2

If a plaintiff in a defamation action is a public official or public figure, what must they prove?

Answer 2

They must prove actual malice (reckless disregard for the truth).

Question 3

What is defamatory language?

Answer 3

Language that diminishes respect, esteem, or goodwill towards the plaintiff, or deters others from associating with the plaintiff.

Question 4

What is libel?

Answer 4

Defamation that is written, printed, or otherwise recorded in a permanent form.

Question 5

What sort of damages does a plaintiff need to prove in libel actions?

Answer 5

Only general damages (damages that compensate the plaintiff for harm to reputation)

Question 6

What is slander?

Answer 6

Defamation by spoken word or gesture, or any form other than libel.

Question 7

What sort of damages does a plaintiff need to prove in slander actions?

Answer 7

Plaintiff must prove special damages OR must show concrete harm.

Question 8

What four categories of defamation are slander per se?

Answer 8

1. Plaintiff has committed a serious crime or crime of moral turpitude;
2. Plaintiff is unfit for his or her trade or business;
3. Plaintiff has a loathsome disease;
4. Plaintiff has committed severe sexual misconduct

Question 9

What are the four categories of privileges that grant immunity from defamation?

Answer 9

Statements made:

1. In the course of judicial proceedings;
2. In the course of legislative proceedings;
3. Between a husband and wife; and
4. In a required publication by radio and TV (e.g. statements by political candidate that a station must carry and may not censor)

Question 10

What are three conditional privileges that, if made in good faith pursuant to some duty or responsibility, grant partial immunity from defamation?

Answer 10

Statements made:

1. In the interest of the defendant (e.g. to defend one’s reputation)
2. In the interest of the recipient of the statement, or
3. Affecting some important public interest

Question 11

What are the four causes of action falling under “invasion of privacy”?

Answer 11

1. Misappropriation of the right to publicity
2. Unreasonable intrusion upon seclusion
3. False light
4. Public disclosure of private facts

Question 12

What are the (6) elements of intentional false representation?

Answer 12

1. False representation of a material fact
2. Scienter - defendant knows the representation is false or acts with reckless disregard
3. Intent - defendants intends to induce plaintiff to act in reliance
4. Causation - plaintiff actually relies on misrepresentation
5. Justifiable reliance - plaintiff’s reliance was reasonable
6. Damages - actual, economic, pecuniary loss

Question 13

What are the (3) elements of intentional interference with a contract?

Answer 13

1. Defendant knew of a contractual relationship (not terminable at will) between a plaintiff and a third party
2. Defendant intentionally interfered with the contract, resulting in a breach, and
3. The breach caused damages to the plaintiff

Question 14

What are the (3) elements of misappropriation of trade secrets?

Answer 14

1. Plaintiff owns a valid trade secret that is not generally known
2. Plaintiff has taken reasonable precautions to protect it, and
3. Defendant has taken the secret by improper means

Question 15

What must the plaintiff prove in an action for trade libel? (4 things)

Answer 15

(i) Publication (ii) of a derogatory statement (iii) related to the quality of the plaintiff’s business or product (iv) that damages the business’s relationships

Question 16

What must the plaintiff prove in an action for slander of title? (6 things)

Answer 16

(i) Publication (ii) of a false statement (iii) derogatory to the plaintiff’s title to real property (iv) with malice (v) causing special damages (vi) diminishes value of the property in the eyes of third parties

Question 17

What is malicious prosecution?

Answer 17

A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause and that action is dismissed in favor of the person against whom it was brought.

Question 18

What must a plaintiff prove in an action for abuse of process? (3 things)

Answer 18

1. Defendant has set in motion a legal procedure in proper form, but has abused it to achieve some improper ulterior motive;
2. Some willful act perpetrated in the use of the process which is not proper in the regular conduct of the proceedings;
3. Conduct causes damages

Question 19

False pretenses

Answer 19

The statutory crime of obtaining property by false pretenses occurs when the defendant intentionally obtains title to property by means of a known false representation that causes the victim to pass title to the defendant.

Question 20

Forgery

Answer 20

Forgery is the fraudulent making of a false writing with apparent legal significance and intent to make wrongful use of the forged document.